Hearing impairment, while prevalent among the national population, may present differently to prospective employers, as compared to other disabling conditions they may encounter more commonly.
There is no doubt that the COVID-19 pandemic continues to have a lasting impact on our society. Of the various changes we have experienced so far, the prevalence of remote or hybrid workplaces has had — and will continue to have — a profound impact on how employers approach their workforces.
While remote work certainly presents some unique challenges for employers, the availability of alternative, more flexible work arrangements has created a new path to success for millions of disabled workers. In fact, a recent study published by the Economic Innovation Group concluded that remote work, along with a tight labor market, resulted in the highest employment rate for people with disabilities in over a decade.
Based on employment statistics, the study found that people with disabilities between the ages of 25 and 54 (i.e., prime working age), were 3.5% more likely to be employed in Q2 2022 than they were pre-pandemic. Non-disabled individuals, on the other hand, were still 1.1% less likely to be employed when comparing the same time period. The data, therefore, reflects that the labor market recovery for disabled individuals was significantly faster than it was for individuals without disabilities.
With this as context, we note that, according to the National Institute on Deafness and Other Communication Disorders, approximately 15% of American adults experience some sort of hearing difficulty (which may qualify as a disability under applicable federal or state disability discrimination laws). The remote work-related labor market trends identified in the Economic Innovation Group study are creating increased opportunity for hearing-impaired individuals, who historically face various employment and retention barriers, to succeed professionally.
As many employers in the United States are aware, the Americans with Disabilities Act (ADA) provides various protections for disabled individuals in the employment arena. Notably, the ADA's safeguards apply to prospective and existing employees alike. In addition to prohibiting disability-based discrimination, the ADA generally requires covered employers to provide a reasonable accommodation that allows a disabled individual to perform the essential functions of the job for which they are employed. What constitutes a reasonable accommodation is a fact-intensive question, dependent upon the particular circumstances at play for a given employee and employer.
A change to an employee's terms and conditions of employment will not be considered "reasonable" if it imposes an undue hardship on the employer.
Hearing impairment in particular may qualify as a disability under the ADA when it substantially limits one or more major life activities. There is no exhaustive list of what constitutes a "major" life activity; however, the category generally includes common employment-related tasks such as working, speaking, reading, learning, and communicating. Importantly, an individual need not be completely deaf in order to be disabled within the meaning of the ADA.
On January 24, 2023, the United States Equal Employment Opportunity Commission (EEOC) issued updated guidance for employers, which explains how the ADA applies to job applicants and employees who are deaf or hard of hearing, or who may have other hearing conditions. The guidance outlines an employer's obligations depending on whether the context is pre-offer of employment, post-offer, or during employment. As a general matter, the EEOC cautions employers against falling into the trap of making the unsubstantiated (and, potentially, unlawful) determination that workers with hearing conditions will pose safety hazards or will have difficulty communicating in the workplace. With respect to reasonable accommodations, the updated guidance notes that applicants or employees with hearing disabilities may need a sign language interpreter, assistive technology, appropriate written memos, work area adjustments, and alterations to non-essential job functions, among other potential accommodations.
Hearing impairment, while prevalent among the national population, may present differently to prospective employers, as compared to other disabling conditions they may encounter more commonly. For that reason, even the most seasoned human resources and hiring professionals would be well served by reviewing the updated guidance, with an eye toward hearing-related disabilities. Moreover, employers are wise to heed the EEOC's guidance, given the considerable liability that may exist for employers who discriminate against hearing-impaired individuals. Indeed, the EEOC's updated guidance came within one week after the federal enforcement agency announced a settlement it reached with a private employer that failed to accommodate a deaf employee's request to have a sign language interpreter present for performance reviews and disciplinary discussions.
In the age of remote and hybrid work, and with the accompanying flexibility that such arrangements provide, employers should anticipate a substantial increase in the number of applications they will receive from hearing-impaired individuals. Consequently, employers should proactively consider these scenarios to avoid liability under the ADA and comparable laws.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Paul King Jr, Foley & Lardner, (c) Mondaq Ltd., 2023
From WCI's HR Answers Now ©2023 CCH Incorporated and its affiliates. All rights reserved.
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